CLIMATE:

States seek to intervene in challenge to EPA's endangerment finding

A coalition of 16 states and New York City is asking a federal appeals court to allow it to intervene in a lawsuit attacking U.S. EPA's endangerment finding.

The states' request comes after several industry groups last month petitioned the U.S. Circuit Court of Appeals for the District of Columbia to review EPA's finding that greenhouse gases endanger public health and welfare. The agency's finding sets the stage for future climate regulations.

The industry petitioners include coal and mining companies Massey Energy Co. and Alpha Natural Resources Inc., as well as the National Beef Cattlemen's Association and others.

The states and New York City argue that they have the right to intervene because they have a direct and substantial interest in the outcome of the court's action. The states seeking to intervene are: Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.

Most of those states were also petitioners in Massachusetts v. EPA, the lawsuit that resulted in the Supreme Court's decision that EPA has the authority to regulate greenhouse gases under the Clean Air Act.

The Supreme Court determined that those states had standing to intervene because they demonstrated that the impacts of climate change were affecting and would continue to affect the petitioner states. Additionally, the states say that a failure or delay in implementing rules to limit greenhouse gases from automobiles would harm hardwood forests, negatively affect tourism and result in a range of negative health effects.

The industry challengers have not yet detailed their concerns with the endangerment finding, but they plan to challenge the science underpinning EPA's determination, said Patrick Day, an attorney with Holland & Hart LLP who is representing the groups.

"We're certainly going to challenge the adequacy of the administrator's ruling on the science, and we think there are probably procedural issues with the science, as well," Day said.

Several environmental groups are also seeking to intervene in the case. The Natural Resources Defense Council, Environmental Defense Fund, Sierra Club and the National Wildlife Federation filed a motion last week to intervene. The New England-based Conservation Law Foundation filed a separate motion.

Joe Mendelson, global warming policy director for the National Wildlife Federation, called the industry groups' challenge a desperate attempt from big polluters to overthrow the science of climate change. "Given that the agency went through an exhaustive review of the science, given what we know about the peer-reviewed science, it seems to be a last-ditch effort by polluters who want to deny that we have a problem," he said.